M/S. Suntech Infra Solutions Pvt. Ltd. vs M/S Cinda Engineering & Consturction Pvt. Ltd.

Dr. Deepti Mukesh, J

This is a common order being passed in CA No. 33/2019 and CA No. 37/2019.

CA No. 33/2019 is filed in form of report by the Resolution Professional seeking following prayers:-

(i) Allow the said report to be taken on record.

(ii) Direct the Corporate Debtor to make the payment of the CIRP cost incurred by the undersigned in pursuance to regulation 34 of IBBI (Insolvency

Resolution Process for Corporate Persons) Regulations, 2016 and as ordered by the Hon’ble NCLAT.

(iii) Pass such other order/direction, which the Adjudicating Authority deem fit and proper in the facts and circumstances of the case.

CA No. 37/2019 is filed by the Corporate Debtor seeking following prayers:

(a) Allow the present application and fix the fee of the IRP only after affording an opportunity of hearing it’s objections to the Applicant Company

and;

(b) Fix such reasonable IRP fee as this Hon’ble Tribunal deem fit and proper in the facts of the present case, with liberty to the Applicant

Company to recover such fee from Suntech in appropriate legal proceedings

(c) All expenses/cost claimed by the IRP may be recovered from the M/s Suntech Infra Solution Private Limited.

(d) Pass such other and further orders as this Hon’ble Tribunal may deem fit and necessary in the facts of the present case.

The issue in both the applications are interlinked and interwoven being the fixation of quantum of the CIRP cost (Inclusive of fees of IRP and RP to

be paid to the Resolution Professional by the Corporate Debtor after giving the credit of the amount already paid by the Corporate Debtor.

Before delving into the issue of the fixation of the CIRP. It is important to peep into the background of the incidences leading to the present

situation. The Operational Creditor M/s Suntech Infra Solutions Private Limited had filed an application under Section 9 of the I&B Code and order of

admission of the said application appointing the IRP was passed on 14th November 2018, appointing Mr. Vijender Sharma, as IRP. The Corporate

Debtor challenged the said order of NCLT dated 14.11.2019 and vide judgment dated 24th January 2019, the Hon’ble NCLAT set aside the order

of admission and discharged the IRP. Facutally, admittedly, the CIRP process lasted from 15th November 2018 to 24th January 2019 i.e. the total

period of CIRP was of approximately for little more than two months.

As a result the IRP then requested the Corporate Debtor to pay the balance amount of CIRP Cost which included the fees of IRP/RP till the period

CIRP was conducted of an amount of RS. 28,88,502/- (Rs. Twenty eight lakhs eighty eight thousand five hundred two). The Hon’ble NCLAT

vide this order dated 24th January 2019 had directed the Corporate Debtor to pay the fees of IRP which was to be fixed by the Adjudicating

Authority. The NCLAT further clarified vide another order dated 15th July 2019 that Adjudicating Authority will fix the fees and cost both payable to

IRP/RP which shall be borne by the Corporate Debtor.

CA No. 37/2019: The Corporate Debtor prays that the fees of IRP be fixed at reasonable rate, considering the facts and circumstances in the

present case as the CIRP was in vogue only for around two months from initiation during which NCLAT was seized of matter and further sought

liberty to recover the same from the applicant company through appropriate legal proceedings.

CA No. 33/2019: The Resolution Professional seeks that the balance amount of fees as charged by the IRP/ RP which is as per Regulation 34 of

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 be ordered to be paid by the

Corporate Debtor. The list of the meetings of CoC as well as the chart of fees as per the work done and fees charged by IRP/RP is annexed.

The only issued now remains in view of the direction of the Hon’ble NCLAT is the fixation of the reasonable quantum of the fees payable to

the IRP/RP.

It is admitted fact and also admitted by the IRP that amount of Rs. 13,43,590/- and odd is already paid by the Corporate Debtor to the IRP during

the process. We have gone through the details filed by the Resolution Professional with respect to the fees charged, expenses incurred and fees paid

to the advocates/counsels during the litigations.

In our view the amount already paid by the Corporate Debtor was being paid during and while CIRP was progress to meet the expenses by the

IRP for conducting the CIRP and litigation. O perusal of the list of the fees charged, it is seem that out of total 25 items, 13 items relates to the

professional fees of different advocates including senior advocate for appearances before Hon’ble NCLAT. In our view, since the Resolution

Professional had not contested any major proceeding nor any complicated issue of question of law was involved, hence, such huge expenses for hiring

the legal experts is incredible as required. In our view, the total amount of Rs. 20,00,000/- including the expenses incurred should be sufficient to justify

the present case. Hence, we direct the Corporate Debtor to pay the balance amount falling short of Rs. 20,00,000/- after deducting the credit of the

amount already paid by them.

Applications 33/2019 and 37/2019 are disposed of in terms of above order.